COURT FILE NO.: 03-CV-246026CM1
DATE: 20050404
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: HUMAYUM CHOWDHURY, Plaintiff
A N D:
JULIE KNIGHT, JAMES KNIGHT,
FLOYD SMITH, and THE WAWANESA
MUTUAL INSURANCE COMPANY Defendants
BEFORE: MATLOW, J.
COUNSEL: Brad Moscato, for the Plaintiff
Alan S. Drimer, for the defendants, Knight
Derek V. Abreu, for the defendant, Wawanesa
HEARD: April 1, 2005.
E N D O R S E M E N T
[1] The defendant, Wawanesa, moved for an order granting leave pursuant to section 133 of the Courts of Justice Act, R.S.O, 1990,c. C.43 (“the Act”), to appeal to the Divisional Court only that part of the summary judgment of a judge of the Superior Court dismissing this action but refusing to grant any costs to the moving party even though it was entirely successful on the motion for summary judgment. Section 133 of the Act reads as follows;
- No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties; or
(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs. R.S.O. 1990, c. C.43, s. 133.
[2] At the commencement of the motion before me, I alerted all counsel of my doubt that the Divisional Court had jurisdiction to entertain the proposed appeal and I sought submissions from them solely on the jurisdictional issue. After hearing those submissions, I dismissed the motion for want of jurisdiction and indicated that written reasons would follow. These are those reasons.
[3] Although the Divisional Court is a branch of the Superior Court, it is a statutory Court having only that jurisdiction given to it by statute. The major source of that jurisdiction is contained in section 19 (1) of the Act which reads as follows;
- (1) An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice,
(i) for a single payment of not more than $25,000, exclusive of costs,
(ii) for periodic payments that amount to not more than $25,000, exclusive of costs, in the twelve months commencing on the date the first payment is due under the order,
(iii) dismissing a claim for an amount that is not more than the amount set out in subclause (i) or (ii), or
(iv) dismissing a claim for an amount that is more than the amount set out in subclause (i) or (ii) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in subclause (i) or (ii);
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;
(c) a final order of a master or case management master. R.S.O. 1990, c. C.43, s. 19 (1); 1994, c. 12, s. 6; 1996, c. 25, ss. 1 (2), 9 (17).
[4] The plaintiff’s claim, as set out in the statement of claim, is for damages in the sum of $1.5 million plus prejudgment interest and costs for injuries and losses arising out of a multi-vehicle accident. The defendant, Smith, one of motorists involved, was uninsured at the time of the accident and, accordingly, the plaintiff named Wawanesa, its insurer, as a defendant pursuant to the uninsured motorist coverage provision in his policy. Had the Knights, who were also involved, been prepared to admit some liability for the accident, it would not have been necessary for the plaintiff to maintain his claim against Wawanesa.
[5] Following the examinations for discovery, Wawanesa served a request to admit that included an admission that the Knights were at least 1% liable for the accident. None of the parties who were served responded to the request and, as a result, all of them were deemed to admit the 1% liability of the Knights. Wawanesa then proceeded with its motion for summary judgment. For the purpose of resolving the jurisdictional issue, it is not necessary to address the other details of this action further.
[6] In the circumstances of this case, if the Divisional Court were to have jurisdiction to entertain the proposed appeal, its jurisdiction would be contained in section 19 of the Act. More particularly, it would have to be found in either section 19 (1) (a) (iii) or (iv). There is no suggestion that jurisdiction is conferred somewhere else.
[7] Of these two provisions, the first comes closer to describing the summary judgment in appeal. That judgment qualifies as a “final order” and it clearly dismissed the plaintiff’s claim as against Wawanesa. However, equally clearly, that claim was for considerably more than $25,000 and, for that reason, the provision cannot apply.
[8] The second provision is also inapplicable. There is no indication that the motion judge made the requisite indication set out in the provision. A statement made to me by all counsel that the action was eventually settled as between the plaintiff and the Knights for a sum less than $25,000 is of no consequence with respect to the jurisdictional issue.
[9] Counsel for the moving party ultimately conceded that the proposed appeal did not fall literally within any of the provisions of section 19 (1) of the Act. However, he urged me to hold that, because it involved a relatively small amount of money, it should be considered to be included. This was not the first time such an argument has been made to me in instances where the jurisdiction of the Divisonal Court was being addressed. However, with respect, it does not become any more persuasive with repetition.
[10] It follows, therefore, that the Divisional Court does not have jurisdiction to entertain the proposed appeal. Jurisdiction may, however, rest with the Court of Appeal with leave pursuant to rule 61.03.1. I am persuaded that I do not have jurisdiction to grant leave to appeal.
[11] None of the counsel for the responding parties addressed the jurisdictional in their respective factums or made any reasonable argument before me why the Divisional Court might be considered not to have jurisdiction. Although it is the moving party who has initial responsibility to address the issue of jurisdiction correctly, that does not relieve the responding parties from challenging jurisdiction when none exists. Accordingly, in the exercise of my discretion, I have made no award of costs to the responding parties for the motion before me.
Justice Ted Matlow
Released: April , 2005.